Are the courts conservative or not? Consistent or not?

Consider two cases…

In the first case, there is an allegation from a resident mother that an absent father has sexually or physically abused the children. Here, the judges routinely adopt a conservative approach – that is, “well, I’m not sure yet – investigations need to be carried out. But, in the meantime, and to be on the safe side, I will stop dad seeing the kids. This might be unfair to dad, but it’s safest – for the moment. Matters can be reviewed when further evidence is available”.

In the second case, there is an allegation from an absent dad that a resident mother is psychologically abusing the child by a campaign of alienation. Here, to adopt that same conservative approach, a judge ought to be saying, ““well, I’m not sure yet – investigations need to be carried out. But, in the meantime, and to be on the safe side, I will stop mum seeing the kids. This might be unfair to mum, but it’s safest – for the moment. Matters can be reviewed when further evidence is available”.

Of course, that is not what actually happens.

A logical analysis reveals the following possibilities:

1 It is wrong to deprive either parent of contact, in both cases;

2 It is right to deprive both parents of contact in both cases;

3 The courts view psychological abuse as trivial – not real abuse;

4 The courts do see psychological abuse as being as serious as physical abuse. But – the short-term harm the child will suffer from being moved to the father’s residence outweighs the longer-term psychological harm the child is suffering at its mother’s home.

We can discount options 1 and 2. The judge can’t have it both ways. Either she is going to be consistent and stop contact in both cases, or in neither case. UKAP respectfully suggests that a conservative approach is right. Better, where kids are concerned, to be safe than sorry.  As long as the investigations the judge wants can be executed swiftly and impartially.

But, as option 2 is never enacted, we have to consider options 3 and 4.

With option 3, if judges consider psychological abuse to be trivial, they are simply wrong.

With option 4, judges seem to be ignoring three things.

Firstly, precedent.

Many, many cases make it clear that a child's longer-term welfare needs outweigh a child’s short-term discomfort.

Secondly, common sense. The reason why the Court of Appeal say, time and again, that short-term pain is ‘trumped’ by the long-term gain of having both parents in a child’s life is that…it’s true (countless studies show that children suffer harm by not having both parents in their lives).

Thirdly, the Act makes it clear that

“Section 1 (2A)

A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare”

Where is it all going wrong?

 

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